Elon scholars: 'Judge shopping' in sex discrimination cases may be for naught

New research by Catherine Dunham and Chris Leupold finds that neither a federal judge's gender, race, nor political appointment appears to impact his or her approach to evaluating Title VII lawsuits. Age? That's (possibly) an issue.

Professors Catherine Dunham and Chris Leupold
Since passage of the Civil Rights Act of 1964 that, among other advances in civil rights, outlawed employment discrimination on the basis of sex, thousands of women have sued their employers for a wide range of behaviors and work environments.

Promises of promotion in exchange for sex. Vulgar language in the office or pornographic photos taped to bulletin boards. Company policies that, on their face, appear neutral but in fact disproportionately harm the career prospects of women because of pregnancy or child care.

The chances of these cases actually making it past summary judgment, the early phase of a lawsuit where a federal judge decides if the case has any merit? You’d be more successful at predicting a coin flip.

Yet new research by two Elon University professors concludes that federal judges don’t seem to allow their gender, race, or ideology to affect decisions as much as many people have conventionally thought. If anything, it’s the age of a judge that appears to better predict the likelihood of a gender discrimination lawsuit surviving summary judgment.

And that has practical consequences for attorneys who handle gender discrimination lawsuits. “If it gets past the judge at the summary judgment phase, it’s most likely over for the defendant,” said Elon Law Professor Catherine Ross Dunham, a national expert in federal civil procedure and gender discrimination who notes that most cases then settle out of court. “The plaintiff will get some money.”  

But it is difficult, she said, for a female plaintiff to get past the summary judgment stage.

“Third Generation Discrimination: An Empirical Analysis of Judicial Decision Making in Gender Discrimination Litigation” by Dunham and Chris Leupold, Elon University’s Isabella Cannon Professor of Leadership and an associate professor of psychology, appears in the Fall 2019 volume of the DePaul Journal of Women, Gender and the Law

Dunham and Leupold, who specializes in organizational behavior and leadership, traveled to Baltimore this spring to share their findings at the University of Baltimore Law Review Symposium on Feminism and #MeToo. “This article was just testing one theory of why these cases aren’t as successful as maybe they should be,” Dunham said. “Why don’t the female plaintiffs fare better in the #MeToo era?”

Using a pool of more than 1,000 federal cases decided between January 1, 2010 through April 30, 2018, and with research assistance from Elon Law alumni Lauren Franklin L'18 and Asia Lance L'18, Dunham and Leupold identified a sample of 160 cases where a single judge made a dispositive ruling and included a written opinion addressing the strengths and weaknesses of the Title VII gender discrimination claim.

The cases were premised on allegations of overt discrimination, sexual harassment, and implicit bias-based discrimination. They included cases wherein the federal Title VII claims are joined with other state and federal claims of discrimination. 

A statistical analysis of the cases revealed that a judge’s sex, race, and the ideology of the president who appointed him or her had no statistically significant bearing on the way a judge would rule.

“If nothing else, this could restore a little bit of faith for people,” Leupold said. “Maybe there are other factors that influence judges’ decisions, or perhaps some of the dispositions in our sample were actually wrongly decided for a either the plaintiff or defense – we don’t know for sure – but at least there was no statistical evidence of discrimination as a function of a judge’s gender, political affiliation, or race.”

Age, however, may have a small influence on the outcome of cases. The ages of the judges in their sample ranged from 45 to 95 – one was appointed to the bench by President Gerald Ford – and data found that for every year older a judge was at the time of the ruling, the woman who filed suit had a roughly a 3 percent less chance of seeing the case survive summary judgment.

So as Leupold points out, there would be very little difference in your likelihood of surviving summary judgement between a 60-year-old judge ruling on a gender discrimination case, and a 62-year-old judge ruling on the same case.

But if it’s between a judge that’s 50 and a judge that’s 80? Different story.

Dunham and Leupold said more research is needed to better understand the way age plays into judicial decision-making. One theory is that older judges entered the legal profession when the workplace wasn’t diverse – far fewer women practiced law in the 1960s and 1970s when some of the older judges in the research sample were building careers.

Leupold said there is opportunity for further study. A judge’s decisions can be influenced by many unique things, he said, and scholars should continue to identify such factors, and more importantly, how they might be mitigated. Leupold also said that sound social science requires ongoing replication before any finding can be claimed definitive.

For now, Leupold and Dunham said, the broader point for plaintiffs – and their attorneys – is that “judge shopping” where cases are filed in certain federal districts may not be as important as has been traditional believed. Republican or Democrat, male or female, white or non-white… these factors did not appear to have significant impact on a judge’s ruling.

“This issue of how long people serve on the court?” Dunham said. “There’s something to think about there.”

About Elon Law:

Elon University School of Law in Greensboro, North Carolina, is the preeminent school for engaged and experiential learning in law. With a focus on learning by doing, it integrates traditional classroom instruction with course-connected, full-time residencies-in-practice in a logically sequenced program of transformational professional preparation. Elon Law’s groundbreaking approach is accomplished in 2.5 years, which provides distinctive value by lowering tuition and permitting graduates early entry into their legal careers.